The Judicial Conference of the U.S. makes small rules change for patent infringement

A change to the rules governing federal courts will make life a whole lot harder for patent trolls, by forcing them to make allegations of patent infringement instead of accusing targets of stealing their inventions

Last week, a panel of judges on The Judicial Conference of the U.S. approved the elimination of Federal Rule 84 that provides model forms used in civil litigation that have grown obsolete, including a form allowing plaintiffs in patent infringement cases to file bare-bones complaints, and recommended that the U.S. Supreme Court approve the change.

The change means Form 18 no longer governs patent disputes and litigants might be held to the stricter standards under the Supreme Court’s Iqbal and Twombly decisions — now known by lawyers as Twiqbal — that require plaintiffs to state more than bare allegations to survive a motion to dismiss.

The Judicial Conference of the U.S., which suggested changes to the Federal Rules of Civil Procedure, unanimously approved the abolishment of Rule 84, which provides model forms that attorneys can rely on in several situations. Among the forms covered by the rule is Form 18, a model patent complaint that requires that a plaintiff include little more than the name and number of the patent and an allegation of infringement.

“After considering the public comments, the committee continues to believe that the forms and Rule 84 should be eliminated. The forms are not used, revising them is a difficult and time-consuming process, other forms are readily available and the committee can better use its time addressing more relevant issues in the rules,” the Judicial Conference advisory committee said in a report.

Rule 84 includes three dozen forms illustrating the proper captions for pleadings, proper signature blocks and forms for summonses and complaints. It was adopted when the civil rules were established in 1938 to indicate the simplicity of statement which the rules contemplate. But, the committee said that many of the forms, including Form 18, are out of date. In fact, they pointed to the sample complaints, which embrace fewer causes of action than now exist in federal court and illustrate a simplicity of pleading that has not been used in years.

Additionally, a subcommittee chaired by Judge Gene Pratter of the Eastern District of Pennsylvania to consider the forms and the process of their revision and to recommend changes found that the forms are rarely used. Members of that subcommittee canvassed judges, law firms, public interest law offices and individual lawyers, and found that none of them use the forms and that all but six websites maintained by the 94 federal district courts around the country even mention the Rule 84 forms on their websites or in their local rules.

“Recognizing that there are many excellent alternative sources for forms, including the Administrative Office of the United States Courts, Rule 84 and the appendix of forms are no longer necessary and have been abrogated,” the committee said.

Until the rule changed, most courts including the Court of Appeals for the Federal Circuit, the second-highest court of appeal for patent disputes, used the looser standards under Form 18 to determine whether a complaint can survive a motion to dismiss. That form requires the name of the plaintiff, the date the patent was issued, and the name of the defendant accused of patent infringement. This bare-bones claims make it easy for patent trolls to file shotgun-style complaints against a number of targets and settle them for nuisance value.

Congress already increased costs for patent trolls with the America Invents Act in 2011, which made it harder for them to join multiple defendants into a single lawsuit alleging, say, violations of a broadly written patent on wi-fi technology. “Once you’re into a patent lawsuit, it’s very difficult to wrap it up,” Christian Mammen, a partner of Hogan Lovells, told Law360. “And that’s been the business model of many NPEs. File suit and extract the litigation-cost avoidance from your targets.”

The Judicial Conference also approved other changes and forwarded them to the Supreme Court designed to promote active judicial case management. Also, rule changes streamline the discovery process to discourage or eliminate unnecessary filings and promote the proportional use of discovery based on the needs of the case.